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Friday, November 11, 2016

One of the most importantly impacts of Trump's election will be its effect on the Supreme Court. We'll have a new member sometime early next year, and it's likely to be a conservative, which will preserve the 5-4 balance existing at the time of Antonin Scalia's death.

And Ruth Bader Ginsberg is frail. She's pledged to hang on, but how long is unknown. (Rumors swirled last year that Clarence Thomas was thinking about retirement, and so now's a good time, since he can rest assured Trump will appoint a conservative to replace him.)

WASHINGTON—Republican victories in Tuesday’s election are nearly certain to alter the Supreme Court’s docket, reviving conservative ambitions and dashing liberal hopes, even before President-elect Donald Trump nominates a successor next year for the court’s open seat.

Legal observers are discussing which cases already in the court’s pipeline are likely to disappear as the Trump administration reverses policies advanced under Democratic President Barack Obama.

The docket shift should accelerate as the appointment of a successor to the late Justice Antonin Scalia nears, likely reviving cases challenging public-sector unions and campaign-finance regulations.

Without clarity about the court’s future direction since Justice Scalia died in February, the justices ducked cases that otherwise might have been accepted. That will change once a ninth justice joins a court now split evenly between conservatives and liberals.

Before the court’s docket gets more interesting, however, it is likely to get less so if some of the most prominent cases are removed, such as a dispute over which restrooms in public schools transgender students can use.

In April, a federal appeals court in Richmond, Va., relied on legal guidance from the U.S. Education Department in ruling for Gavin Grimm, a transgender student who contended the Gloucester County, Va., school board violated federal sex-equity laws by requiring students to use facilities corresponding to their biological sex. If the Trump administration rescinds that guidance or takes the opposite position, the justices might throw out the lower court opinion without requiring oral argument.

Other cases involving Obama administration policies could meet similar fates.

Earlier this year, the Supreme Court sent back to lower courts challenges to Mr. Obama’s Clean Power Plan, which requires cuts in carbon emissions to reduce climate change; the Deferred Action for Parents of Americans program, which would allow illegal immigrants with children who are U.S. citizens to work; and Affordable Care Act regulations attempting to ensure that women who work for religion-affiliated organizations can obtain prescription birth control through employer-provided health insurance.

With the Trump administration expected to consider canceling such policies, the cases could vanish. The incoming president could also ensure the government doesn’t appeal a lower court decision last month that reduced the independence of another Obama-era legacy, the Consumer Financial Protection Bureau.

Another high-profile case, challenging a Missouri law limiting public subsidies for religious schools, is almost sure to leave the docket as a result of Tuesday’s election. The newly elected Republican attorney general, Josh Hawley, had while in private practice filed a friend-of-the-court brief opposing the state on behalf of the Assemblies of God denomination. After taking office in January, he could settle with the Trinity Lutheran Church of Columbia, Mo., which is seeking a state grant to resurface its preschool playground.

Progressive legal activists had imagined a Hillary Clinton presidential victory that, by filling the Scalia vacancy, could create the first liberal majority on the Supreme Court since 1969. Now, however, they can expect to return to the role they have played for nearly half a century: defense against a conservative legal offensive.

The nature of environmental litigation before the high court also is almost certain to shift. During the Obama years, industries, developers and their allies have challenged administration regulations under the Clean Air Act, the Clean Water Act and other environmental laws...